51 Ga. App. 452 | Ga. Ct. App. | 1935
The indictment charges that on September 20, 1934, in Fannin county, Georgia, Raymond Abernathy committed. the crime of murder by shooting Frank Mahaifey with a pistol. A jury found the defendant guilty of voluntary manslaughter, and the exception is to the judgment overruling the defendant’s motion for a new trial. The special grounds of the motion present two controlling questions: (1) Did the evidence and the prisoner’s statement, separately or together, warrant the charge on mutual combat? (2) Did the evidence and the prisoner’s statement, separately or together, warrant the charge on voluntary manslaughter ?
It appears from the record that, on the night of September 20, 1934, near a church, and in Fannin county, Georgia, the deceased was shot with a pistol, the ball striking him a little below the nipple of the left breast, “coming out just above the belt line,” and causing his death. Without undertaking to set out the transaction in detail, we shall consider that part of the evidence and the defendant’s statement which bears most directly upon the questions at issue. Trammell Carroll, sworn for the State, testified that the defendant and the deceased left the churchyard, saying that they were going to get some liquor, and that shortly thereafter they had liquor, and “the whole bunch took a drink;” that shortly thereafter the defendant took out his gun and told Frank Mahaifey he would shoot him, and then said, no, he was “just joking;” that the defendant then put his pistol in his pocket and “tapped” the deceased on the head with a beer bottle, and the defendant and the deceased “went on up the road with their arms around each other;”that “about the time the gun was drawn,” Mahaifey was boisterous and cursing, and witness thought he “did call somebody there a damned son of a bitch;” that shortly thereafter Clement, who was fighting with the deceased, ran away, saying the deceased “had a gun and was going to shoot;” that the deceased then hit at the defendant, with his fist, witness thought, and “they kinder backed off” about three feet from each other, and the pistol fired and the deceased fell; that the shot came from the direction of the defendant; and that the defendant said: “I didn’t mean to shoot him, I just meant to scare him.”
Dewey Clement, sworn for the defendant, testified that, on the
Lannus Brown, sworn for the defendant, testified that when he asked the crowd of five who shot the deceased, the defendant alone answered the question, by saying that he had not shot him; and after the shooting the witness took a “Colt’s 380 pistol” out of the defendant’s pocket, “because I didn’t know what he would do,” and that the defendant didn’t much want him to have it.
The defendant stated to the jury that he and the deceased were on friendly terms; that they went to get some whisky; that the deceased was intoxicated and cursed a little and he told him to be quiet, but the deceased kept on cursing; that the deceased got defendant’s pistol from his belt and pointed it at Clements and said he would slioot him; that defendant “grabbed hold of the gun to keep him from shooting him, and the gun went off;” that when the deceased fell the pistol was left in.the defendant’s hand; and that “it was just an accident.”
“There need not be mutual blows to constitute a mutual combat. There must be a mutual intent to fight, and if this exists and but one blow be stricken, the mutual combat exists, even though the first blow kills or disables one of the parties.” Tate v. State, 46 Ga. 148 (3). “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of [voluntary] manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113;
We hold that there was both mutual combat and voluntary manslaughter in this case, and that the court did not err in charging the law applicable to those subjects. We also hold that the evidence supports the verdict, and that for no reason assigned did the court commit reversible error in overruling the motion for a new trial.
Judgment affirmed.